The UK Border Agency laid a statement of changes before Parliament on 16 March 2011 outlining, among other details, changes to the ways in which people will qualify for Indefinite Leave to Remain (ILR).

The UK Border Agency will introduce these changes on 6^th April 2011.

Changes affecting all applicants

Anyone applying for Indefinite Leave to Remain from 6^th April 2011 onwards should be free of all unspent convictions at the time of application.

The period of time for a conviction to become spent varies, and certain convictions will never become spent. Further information on this can be found here.

Individuals with unspent convictions may wish to make an ILR application before the changes in April that will make unspent convictions a reason for automatic refusal. Under current rules, convictions present a risk to an application, but do not automatically mean it would be unsuccessful.

Changes affecting certain visa holders only:

Tier 1 (General) visa holders

Applications for ILR from Tier 1 (General) visa holders will now become points based. Points will be awarded in largely the same way as at the time of the last visa application. Applicants will need to score either 75 or 80 points depending on the date of their first Tier 1 (General) application.

To qualify for ILR after 6^th April 2011, Tier 1 (General) visa holders should have:

• Completed a continuous period of 5 years lawfully in the UK;
• Spent no more than 180 days outside the UK over the full 5 year period, of which no trip should exceed 90 days.
• No unspent convictions;
• Passed the Life in the UK Test;
• Scored the same number of points in ILR attributes as in their last Tier 1 (General) visa application.

HSMP ILR Judicial review

The HSMP ILR Judicial review policy will remain in place. Individuals whose first HSMP application was submitted before 3 April 2006 will still qualify for ILR after 4 years in the UK, and will not need to pass the Life in the UK Test. Individuals whose first HSMP application was submitted between 3 April 2006 and 7 November 2006 will qualify for ILR after 5 years in the UK, and will not need to pass the Life in the UK Test. The assessment for ILR will not be points based.

To qualify for ILR after 6^th April 2011, those covered by the HSMP ILR Judicial review should have:

• Completed a continuous period of 4 or 5 years lawfully in the UK;
• Spent no more than 180 days outside the UK over the full 4 or 5 year period, of which no trip should exceed 90 days;
• Been economically active in the UK throughout the period.

Tier 2 (ICT) visa holders

In order for a Tier 2 (ICT) visa holder to qualify for ILR their first Tier 2 (ICT) visa should have been granted under the rules in place before 6 April 2010.

Individuals whose first Tier 2 (ICT) visa was granted after 6 April 2010 cannot qualify for ILR after 5 years.

Tier 2 migrants will now also need to meet income criteria. This means they should be paid at least the salary stated in the appropriate Codes of Practice. This must be confirmed in a letter from the employer supporting the ILR application.

To qualify for ILR after 6^th April 2011, Tier 2 (ICT) visa holders should have:

• Completed a continuous period of 5 years lawfully in the UK;
• Spent no more than 180 days outside the UK over the full 5 year period, of which no trip should exceed 90 days;
• No unspent convictions;
• Been granted one Tier 2 ICT under the rules before 6 April 2010;
• A letter from their sponsor stating that the migrant is still needed and is paid at the relevant rate as shown on the codes of practice;
• Passed the Life in the UK Test.

Tier 2 (General) / (Minister of Religion) / (Sportsperson) / Work Permit visa holders

Tier 2 / Work Permit visa holders will now need to meet income criteria. This means they should be paid at least the salary stated in the appropriate Codes of Practice. This must be confirmed in a letter from the employer supporting the ILR application.

Tier 2 (General) / (Minister of Religion) / (Sportsperson) / Work Permit visa holders should have:

• Completed a continuous period of 5 years lawfully in the UK;
• Spent no more than 180 days outside the UK over the full 5 year period, of which no trip should exceed 90 days;
• No unspent convictions;
• A letter from their sponsor stating that the migrant is still needed and is paid at the relevant rate as shown on the codes of practice;
• Passed the Life in the UK Test.

N.B. The salaries shown in the Codes of Practice may have increased steeply since the original Tier 2 visa application was made. This means that the individual may need to be awarded a significant pay rise to meet the new salary requirements to qualify for Indefinite Leave to Remain.

It has come to our attention that a new form of fake job offer scam has emerged. The scam operates as follows: Individuals are offered (fake) jobs in the UK, and are then asked to send their passports by international courier (often FedEx) to the London address of UK Work Permits Ltd. Correspondence is sent from a non-specific email address such as Yahoo, Hotmail or Gmail. UK Work Permits Ltd will only ever email from @uk-wp.com email addresses.

After the victim sends their passport, the scam artist will pretend to have received the package, and will ask for payment to be made (to themselves, not to UKWP), probably via Western Union, Moneygram,  money transfer or a similar service. After making payment, the victim will become aware that their passport and work permit have not materialised, and will complain to UK Work Permits Ltd. UK Work Permits Ltd will receive passports from unknown individuals (relating only to fake job offers and invalid cases) and are left to counsel the victim, and arrange the return of the person’s passports / travel documents.

Potential victims must note that: YOU SHOULD NEVER SEND YOUR PASSPORT OVERSEAS USING AN INTERNATIONAL COURIER. We would never ask anyone to do this.

If you have already sent your passports to us, please contact us as soon as possible and we will do our best to help you arrange the return of your documents.

Following our earlier article, we can now announce that we expect an extremely limited number of same day appointments to be available in the next two weeks. Those interested in using the Tier 1 (General) Premium Service should call us on 0845 226 4030 immediately to avoid disappointment.

Results of January 2011 UK Border Agency Panel Meeting

The UK Border Agency has recently published the results of its Panel Meeting from the beginning of January 2011. For an explanation of this process, please refer to our previous news article here.

This month, the UK Border Agency has awarded Tier 2 (General) Certificates of Sponsorship to requests for roles with a salary at or above the following:

For shortage occupation roles:                      £28,000 per annum

For non-shortage occupation roles:               £36,000 per annum

For several months prior to January 2011, the threshold salaries were set at £20,000 for shortage occupation roles and £32,000 for non shortage occupation roles. These new figures indicate that these thresholds are subject to change from month to month, and may well go down again for the two monthly panel meetings left before the permanent cap is introduced in April this year.

UK Work Permits would not discourage sponsors from submitting requests this month even if the request is for a role with a salary below the thresholds stated above. There is no fee for submitting a request, and if it is rejected, there is nothing to stop it being submitted the following month.

UK Work Permits is always happy to give free initial advice regarding the viability of requests for Certificates of Sponsorship, and the process of issuing those CoS once granted. If you would like to make a request or have any further queries, please contact us.

Interim immigration cap ruled unlawful following High Court judgment

The interim immigration cap which was introduced in July 2010 to prevent a ‘rush’ of applications prior the permanent limit in April 2011 has been ruled unlawful by the High Court, following a challenge by the JCWI and ECCA.

The High Court judges concluded that the home secretary had not gone through the proper parliamentary procedures before implementing the cap.

Our understanding of this judgment is that the interim cap is no longer in force. This means there is no current restriction on the number of Tier 1 (General) visas that may be granted from outside of the UK, or the number of Certificates of Sponsorship which may be issued to employers in the UK. However, it should be mentioned that the granting of Certificates of Sponsorship was always subject to the discretion of the UK Border Agency.

Damian Green, immigration minister, has suggested that the Government may appeal the verdict and has stated “We will do all in our power to continue to prevent a rush of applications before our more permanent measures are in place.”

We would recommend that individuals wishing to apply for Tier 1 (General) from outside of the UK should apply as soon as possible, so as to take advantage of the apparent ‘stop’ in the interim immigration cap.

We would also recommend that any companies wishing to sponsor migrant workers proceed as soon as possible.

Many of the precise implications of this judgment are as yet unclear. We will publish more information as soon as it becomes available.

UK Work Permits is always happy to give free initial advice regarding the viability of visa applications. If you would like to make an application or have any further queries, please contact us.

Annual limits on economic migration from April 2011 – Implications of the announcements

Further to our previous news article on the recently announced Annual limits, we would like to clarify UK Work Permits’ understanding and interpretation of the limited information that the UK Border Agency and Home Office have so far published.

Tier 1 of the Points Based System

Tier 1 (General) scheme

The Home Secretary announced in her speech that from April 2011, the Tier 1 (General) route will be closed.

It is unclear at this moment how those currently holding a Tier 1 (General) visa will be affected. The Home Secretary has made no reference to such individuals, and her rhetoric certainly suggests an intention to close the scheme completely. However, in the past (since the HSMP Judicial Review), the UK Border Agency has always implemented transitional arrangements to allow visa holders to extend and reach settlement without having to meet unforeseen requirements. We hope that the UKBA will clarify this issue in the near future.

Applicants who are currently in the UK with a visa that will allow them to switch into the Tier 1 (General) category without leaving the UK, and who qualify under the current criteria should apply as soon as possible, but certainly prior to April 2011. As the rules currently stand, provided an in-country application is submitted (i.e. posted) to the UKBA prior to the change of rules, the application will be decided under the existing rules.

For applicants who are currently outside of the UK, or need to leave the UK in order to switch, applications may be affected by the monthly ‘limit’ on out of country applications. In July 2010, the UKBA introduced a limit on the number of Tier 1 (General) applications that can be approved in any one calendar month. The ‘approval quota’ will not affect the way in which applications are submitted, and if an application is received and the limit has not been met, a visa will be granted as normal. If an eligible application is received and the limit for the month has already been reached, the application will be held until the next month, when a new quota will be available. This ‘roll-over’ will continue until the application falls within the quota and a visa can be granted. It is highly likely that any Tier 1 (General) applications that are held up by the above mentioned ‘limit’ at the end of March 2011 will be refused automatically.

In short, to stand the best chance of being approved prior to the closure of the Tier 1 (General) scheme in April 2011, out of country applications should be submitted as soon as possible.

Tier 1 (Post-Study Work)

The Home Secretary announced that the UK Border Agency will be looking into this category with a view to closing it entirely, on the grounds that 1 in 10 UK Graduates are currently unemployed. The UKBA has also announced that there will be a cap of 1000 visas per year under Tier 1, excluding the Investor and Entrepreneur categories. The Home Secretary also spoke of a new Tier 1 category, entitled ‘People of Exceptional Talent’, with a yearly cap of 1000 visas. This would appear to indicate an inclination to remove the Tier 1 (Post-Study Work) scheme altogether. It is still possible that the UKBA will announce changes or closure of this scheme to be implemented in April 2011, although at the moment this is unclear.

The UK Border Agency has been highly critical of this route, and has treated it with deep suspicion, often claiming that it is abused to allow migrant workers to perform low-skilled jobs. The Home Secretary has not confirmed what percentage of recent domestic UK graduates could be considered to be performing Highly-skilled work; a figure UK Work Permits would have considered relevant to the argument.

Tier 1 (Entrepreneur)

The Home Secretary has announced that this category will be exempt from the annual cap, with the process of applying for this visa being made “quicker and more user-friendly”. The UKBA has not elaborated on this as yet, and it is not clear whether the current requirement that the applicant have access to £200,000 will be relaxed, or whether there will be mere procedural changes to the processing of these applications.

Tier 1 (Investor)

This category will also be exempt from the annual cap, and the Home Secretary has not announced any changes to this scheme.

New Tier 1 category

The Home Secretary announced the creation of a new category for ‘People of Exceptional Talent’, with an annual cap of 1000 visas. In order to qualify under this scheme, applicants will need to have “won international recognition in scientific and cultural fields, or show exceptional promise to be awarded such recognition in the future”. It is likely that applicants will have to obtain an endorsement from a relevant body in order to apply.

This scheme appears to have been constructed purely to appease the scientific and academic communities, some the loudest critics of the proposed immigration cap. UK Work Permits is concerned that the actual ‘mechanics’ of the scheme have not been properly thought out, and suspects that most decisions will be highly subjective and taken by UK Border Agency staff unqualified to make such decisions.

Tier 2 of the Points Based System

Tier 2 (General)

Firstly, and most importantly, the Home Secretary has announced that Tier 2 (General) will be restricted to Graduate level jobs only. The UKBA will publish a list of roles that can be considered ‘Graduate level’ in due course. It is unclear whether this requirement will extend to roles specified on the Shortage Occupation List, although the UKBA’s comment that they will “amend the Shortage Occupation list accordingly” strongly suggests that employers will no longer be able to sponsor workers in roles such as chefs and senior care workers.

Secondly, Tier 2 (General) will be capped at a level of 20,700 for the year from April 2011 until March 2012. Unlike the current interim cap, no Certificates of Sponsorship will be given out to sponsors at the start of the year, and all sponsors will have to request additional CoS via monthly panel meetings. These will be ranked according to the following ‘characteristics’:

• Whether or not the role is on the Shortage Occupation list;
• Whether the role requires higher academic qualifications, presumably Masters and PhDs;
• The salary for the role.

This is not a strict order, and it is likely that the UKBA will award ‘points’ for each of these ‘characteristics’. In this way, it may be possible for a higher salaried position to be deemed ‘more important’ than a role on the Shortage Occupation list.

The following situations will not be capped:

• In Country applications. This will certainly include people who currently hold work permit or Tier 2 visas. We can only presume that this will also include individuals who are in the UK with another type of visa that allows them to switch into Tier 2. The biggest winners from such a change would be sponsors seeking to continue employing individuals with Tier 1 (Post-Study Work) visas;
• Vacancies that attract a salary of more than £150,000 per year.

Lastly, where applicants under the Tier 2 (General) scheme are not from an majority English language speaking country, and have not passed a degree level qualification taught in English, they will now need to pass an English Language Test at a higher level than previously (B1 on the Common European Framework of Reference, rather than A1). An IELTS score of 4.0 is currently deemed to be at level B1.

Tier 2 (Intra-Company Transfers)

The Home Secretary has announced that from April 2011, in order to transfer staff to the UK for more than 12 months (up to a maximum of 5 years), the role must have a salary of more than £40,000 per year. Individuals who are paid at least £24,000 per year will be permitted to come to the UK for up to twelve months. The Graduate Trainee and Skills Transfer sub-categories will remain as they are now, although it is certainly possible that the visa points requirements will be adjusted.

To clarify, Tier 2 (Intra-Company Transfers) will not be covered by the overall annual limit described above, that applies only to Tier 2 (General) applications.

Indefinite Leave to Remain

The Home Secretary has announced an intention to ‘end the link between temporary and permanent migration’. This rhetoric suggests that the UK Border Agency will make fairly significant changes to the ILR rules in the future, but for the moment, only a few minor changes have been announced. Again, these will occur in April 2011.

Firstly, applicants who have unspent convictions will not qualify for Indefinite Leave to Remain. This requirement would appear to extend to dependants.

Secondly, applicants applying for ILR from a Tier 1 (General) or Tier 2 visa will be required to show that their salary has remained at the level for which their current PBS visa was approved.

Lastly, applicants who do not pass a minimum English Language requirement will not be eligible to apply for ILR. We are currently unaware of how this requirement will differ from the current requirement that applicants pass either the Life in the UK Test or an ESOL course.

UKBA announces introduction of Biometric Residence Permits for Tier 1 and 5

On 20th October 2010, the UK Border Agency announced that from 14th December 2010, migrants applying for Tier 1 and Tier 5 categories will need to apply for Biometric Residence Permits (BRP) if they wish to extend their stay in the UK.

The ID card-style BRP will replace the stickers currently endorsed in passports by the UK Border Agency. Subject to approval by parliament, migrants applying to extend their stay will now need to provide biometric information (fingerprints and photograph).

The expected introduction of this requirement is likely to mean that there will be additional costs associated with applications for both Tier 1 and Tier 5, not to mention the additional effort involved with booking and attending a biometric appointment.

Applying before the new requirement’s introduction on 14th December should allow applicants to avoid these costs. At the time of writing it should still be possible for individuals to obtain “same-day” Premium Service appointments in advance of the new processes being introduced. For information and advice on applications under these categories, please contact us.

New UKBA requirements for Tier 1 and Tier 2 applicants submitting postgraduate certificate or diplomas

The UK Border Agency has announced a new requirement for applications made under Tier 1 (General), Tier 1 (Entrepreneur) and any Tier 2 category.

From 12th October 2010, all applicants submitting a postgraduate certificate (PGC) or postgraduate diploma (PGD) awarded by a UK listed body must also submit a letter of equivalency issued by UK NARIC in order to score points for qualifications or English language skills.

In order to gain a letter of equivalency, UK NARIC charges individuals £47. If UK NARIC does not consider the qualification to meet the correct standards, it will refund this amount to the individual.

This news item originates from a news piece originally seen on the UK Border Agency website between 15th  and 18th October 2010. This has since been removed. The UK Border Agency has nevertheless made assurances that this rule remains in place even though it cannot be found on the UKBA website.

Immigration Limit Consultation Response

UK Work Permits Ltd is sharing with its clients and users of this website, the responses it has given to each of the questions in the current consultation regarding limits on tiers 1 and 2 of the Points Based System.

The Consultation can be found here. We suggest that all clients, particularly employers, submit their views. We have completed the online form as there were errors on the PDF response form.

The consultation questions, and our answers, are below:

Question 1: Do you agree that operating a pool for highly skilled migrants on the basis described above will be the fairest and most effective approach?

Answer:           No.

Question 2: If you have answered yes or no to the previous question, please give your reason(s) in the box below.

Answer:           We would agree that based only on the two options presented in the consultation, as they were described, the pool system appears to be the fairer in terms of applications being decided more on merits, rather than on “timing”. However, the pool system is fundamentally still unfair as to a large degree it will equate to a “lottery” for individual applicants. The success or failure of an individual’s application (as well as the speed at which it is approved) will depend partly on a very “unknown quantity”: the strength of other people’s applications submitted at around the same time as their own. This is hardly the fair and predictable system promised when the Points Based System was introduced (or indeed being promised now by the coalition Government and MAC). As an aside, it is clear that if applications were only selected from the pool only once every three months this would create massive uncertainty and very significant delays for applicants. In the New Zealand system, applications are selected from the pool every two weeks.

3. Do you agree that operating a first-come first-served system for skilled migrants available to individual sponsor employers will be the fairest and most effective approach? Please select one answer only.

Answer:           No.

4. If you have answered yes or no to the previous question, please give your reason(s) in the box below.

Answer:           We are not in favour of this. Based only on the small number of problematic options that have been presented, the “first come first served” choice seems the fairest: it could still allow for decisions to be made according to consistent and predictable qualifying criteria.

Against only the two alternatives mentioned, the “first come first served” option seems to be the least unfair. However, we are still opposed to it and we are opposed to the very idea of a rigid limit on immigration under Tier 2. Any limit on migration through Tier 2 will inevitably result in unnecessary and harmful restrictions and delays for British businesses, who will be forced to put their urgent staffing needs on hold, whichever one of the 3 options is implemented: for example, while they wait for the next CoS allocation to become available, while they wait to see if and when a candidate will be selected from a pool, or while they wait to discover that they have been unable to obtain their CoS quota through an auction.

5. Do you believe that where a quarterly quota is filled applications that have not yet been considered should be rolled over to the following release?

Answer:           Don’t know.

6. If you have answered yes or no to the previous question, please give your reason(s):

Answer:           Although we have answered “don’t know” we need to make further comment. We’ve answered “don’t know” because we believe the question is meaningless at this stage. We believe that this question relates to tier 2, although the question itself doesn’t make this clear. This question concerns a detail that probably can’t be sensibly decided on until more fundamental issues have been decided on. For example, the level at which the Tier 2 limit is going to be set, and the level to which this limit is likely to fall short of demand. If the limit will significantly and regularly fall short of demand, and if applications are allowed to roll over repeatedly, then this could create a huge, impenetrable backlog. However, if the limit and demand are more closely matched, employers should not have to apply again following a one-off month of high demand. There are more pieces of information that would be needed in order for this question to be answered. For example, would the quota be relevant at the stage of issuing CoS’s, or when visa applications are being considered? Would the limit be applied to initially “available” CoS’s, or CoS’s actually used? If the CoS quota was made available to an employer at the start of a period, would it be guaranteed to be available for the whole period, or could it disappear if demand was high from other employers? If the quota would be relevant at the stage of issuing a CoS, would employers would be able to see at the time of trying to issue a CoS that none were available within their quota? If so, there would probably be no need to roll over anything – the employer would be able to see at the time of trying to issue a CoS that they should just try again at the start of the next period. The whole question of carrying over a CoS request will surely depend on some sort of system where employers are able to apply for a CoS to be issued “pending quota availability”. No such system has been discussed. There are countless unanswered questions. The question asked here in the consultation cannot be sensibly answered with a yes or a no based on the information available currently. It is a non-question.

7. Do you think the Government should consider raising the minimum criteria for qualification under Tier 1 of the Points Based System?

Answer:           No.

8.  If you have answered yes or no to the previous question, please give your reason(s)

Answer:           We believe that the current qualifying threshold is roughly correct in terms of allowing people to enter who are likely to engage in highly skilled work and contribute to the economy, based on our own anecdotal experience.  If we had to comment on this further we would have to say that there is perhaps too much emphasis placed on previous earnings rather than provable skills and relevant experience. A good number of individuals with skills that are badly needed in the UK do not qualify currently purely because their previous earnings aren’t high enough. The amount of previous earnings, in the current system, seems to be given unduly high importance.

9. Do you think the Government should provide for additional points to be scored for the following factors?

Higher level English Language Ability?   (Don’t know.)

Skilled dependents?                                         (Yes.)

UK experience?                                                 (Yes.)

Shortage skills?                                                  (Yes.)

Health insurance?                                            (No.)

10. Do you think that there are any other factors that should be recognised through the Points Based System?

Answer:           We don’t have any additional factors to suggest, but we would like to comment on the ideas raised in the consultation:

Higher Level English Language Ability:

We support the inclusion of a stringent and demanding English Language requirement for Tier 1 (general), as we believe that adequate English Language skills are important for professional success in the UK and integration into British society. We believe that this should be closely monitored and that potentially alterations may need to be made to this area.

Skilled Dependents:

We believe that in some cases, where a dependant has provable skills, perhaps in a shortage area, there would be merit in awarding points in recognition of this, with the valid aim of  encouraging and facilitating the arrival of people with skills that the country genuinely needs.

UK Experience:

Points are already awarded under this area. There are valid reasons to continue: rewarding people who have already paid UK University fees to study here or who have contributed to the economy through tax on their UK earnings, and also in recognising the degree to which these people will have already integrated into British society. We think however that the importance / relevance of this factor will vary according to the stringency of the English Language requirements.

Shortage Skills:

In our view it makes sense to recognise shortage skills under the Tier 1 (general) route, and take advantage of this category to more effectively relieve skills shortages.

Health Insurance:

We believe that the idea of factoring in private health insurance is completely unnecessary and unfair in the context of all of the existing and proposed measures of an applicant’s suitability to enter the UK under this category. Private health insurance is extremely expensive. We are also sure that in anything like its current form, Tier 1 (General) will not be a route used for “health tourism”.

11. Do you agree that tier 1 Investors should be excluded from the annual limit?

Answer:           Yes.

12. If you have answered yes or no to the previous question, please give your reason(s)

Answer:           We oppose the introduction of a rigid limit for tiers 1 and 2, and so we welcome any and all relevant subcategories being exempt.

13. Do you agree that Tier 1 Entrepreneurs should be excluded from the annual limit?

Answer:           Yes.

14. If you have answered yes or no to the previous question, please give your reason(s)

Answer:           We oppose the introduction of a rigid limit for tiers 1 and 2, and so we welcome any and all relevant subcategories being exempt.

15. How could the UK make itself more attractive to investors and entrepreneurs who have the most to offer in terms of driving economic growth?

Answer:           As well as making the rules and management of these subcategories more flexible, a significant amount of benefit could be achieved through the active overseas promotion of the UK as being a good place to do business / base a business. The effect of any such message however will be significantly weakened in many cases by the very limits on skilled migration being discussed here. Investments in education and infrastructure are other obvious suggestions. In response to the suggestions for revising the requirements for the Entrepreneurs sub-category, we do think that there is probably some merit in this. It may make sense for applications based on proposed businesses in growth areas to be treated more favourably than those where the market in the UK is saturated. The consideration of applicants who have secured staged funding should be considered very carefully as these provisions could be subject to abuse.

16. Do you agree that the Intra Company Transfer route should be included within annual limits?

Answer:           No.

17. If you have answered yes or no to the previous question, please give your reason(s)

Answer:           Firstly, we believe that the claim (as put forward in the consultation document) that Intra Company Transferees are likely to claim public funds is highly questionable. Most intra-company transferees are highly paid and responsible professionals, and would not do anything to contravene the rules covering their stay in the UK. We do not support ICTs being affected by the limit, especially while this is the only clear argument to include them.

In the system as proposed, we would hope at least that there would be the option of extending the stay of transferees who were initially brought in for less than 12 months. In the case of urgent ICTs, we envisage employers bringing people in initially for less than 12 months (to avoid refusals or delays due to the limit) and then being forced to process repeated subsequent extensions, adding to costs and bureaucracy for their business.

As with the issue of dependents, it looks very much as though this may not be a question for real consultation. The MAC has been instructed already to “work on the basis that” ICT’s are to be included in the limit. It looks very much to be a foregone conclusion that they will.

18. Do you agree that dependents should be included towards the limit?

Answer:           No.

19. If you have answered yes or no to the previous question, please give your reason(s)

Answer:           We disagree with the limit itself affecting individual applicants, but if dependants are to count towards the limit, then the situation will be potentially made even more unfair. To use a simplistic but logical example, it could lead to a situation where one business is penalised (left unable sponsor somebody they need) because a migrant worker who is going to work for another business has a large family. We expect that with the data that is available on tier 1 and 2 workers, it must be possible to work out the average number of dependents for each main applicant. This “average” number of dependents can then be factored into the calculations leading to any final limit figure, assuming that the limit is going to be implemented despite stakeholder opposition.

There seems to be little point in the Border Agency having asked this question as part of the consultation. The UKBA have already instructed the Migration Advisory Committee to recommended figure for a limit to include dependents. This clearly and seriously discredits the consultation process. The parameters of the discussion have already been set so tightly as to make the process appear almost meaningless, and with the government asking direct questions they have clearly already decided the answer to, the supposed consultation begins to look like nothing more than an empty public relations exercise.

20. Do you believe that the Shortage Occupation and Resident Labour Market Test route should be merged in this way (as described in the consultation document)?

Answer:           No.

21. What, if any, do you think would be the advantages of merging the Shortage Occupation and Resident Labour Market test routes?

Answer:           We cannot say that there would be any advantages, unless harmful restrictions being placed on businesses are what the Government is seeking.

22. What, if any, do you think would be the disadvantages or merging the Shortage Occupation and Resident Labour Market test routes?

Answer:           Our view is that combining the shortage occupation list and the resident labour market test is totally unnecessary and that it will definitely harm business in the UK. This idea could only ever begin to work if based on a consistently flawless shortage occupations list that would take into account every regional and local trend and situation at every moment in time – and that is clearly unrealistic.

The very point behind needing to demonstrate a resident labour market test is supposed to be that employers show that they have tried in practice, and failed, to recruit a suitable resident worker. If an employer has advertised (in a suitable way, to hit the most relevant target audience), and has still been genuinely unable to recruit, this in itself surely demonstrates that there is a need for the employer to look further afield. If the system cannot cover such a situation, then it will not meet the needs of businesses and this will be another step that will make the UK a less attractive place from which to base a business.

The Government has stated its ongoing support for the principle of sponsorship for UK organisations employing migrant workers. We suggest that the Government/UKBA focuses on the long promised / threatened matter of enforcement. We believe that the current resident labour market test rules, in combination with the Sponsor’s Duties, actually work perfectly well at preventing unnecessary sponsorship of migrant workers, if only they are adhered to. We suggest that the Government/UKBA focuses on checking and ensuring the current guidelines are followed. One simple step that could be taken would be to check that advertisements used by employers do indeed meet the basic published requirements.

Basic checks should be made when Certificates of Sponsorship are issued by employers, and clearly it should be noticed if the employer enters clear descriptions of inadequate advertising. We have become aware of situations where employers (not  those receiving advice from the matter on us) have literally informed the Government in this way (using the Sponsorship Management System) that they haven’t conducted a proper recruitment search, yet an individual then goes on to be sponsored under Tier 2. How easy would it be to put an automated system in place that would flag up any situation where the phrase “jobcentre” hasn’t been used in the relevant field (and for that matter other approved media depending on the code of practice that is selected)?

From our own experience / knowledge, an insufficient amount of compliance activity, so far, has taken place, to allow employers to really understand the importance of their responsibilities regarding the resident labour market search. Compliance activity seems so far to have been misdirected into other, far less important activities, but we suggest that this is what is needed, rather than an effective ban on all non-shortage sponsorship.

Combining the resident labour market test and the shortage occupations list would be incredibly damaging for British businesses, and unworkable. We suggest instead that the Government/UKBA focuses simply on making sure that the perfectly adequate rules regarding the resident labour market search are actually adhered to.

23. When do you think this change should be implemented?

Answer:           More than 12 months.

24. What consideration should be given to advertising requirements?

Answer:           Firstly we should clarify that the above selection was only made in the absence of the option “not in the foreseeable future”. We assume that this question  (24) should be taken just as it reads (not assuming that advertising would need to be carried out in addition to having a position match a recognised shortage occupation). We believe, as stated previously, that the advertising requirements are basically adequate. One possible area for improvement (as well as the issue of compliance mentioned above) may be that the guidance does not make clear enough what situations do and do not merit an employer sponsoring a migrant worker.

25. Do you believe that the Government should extend sponsor responsibilities in these ways (as described in the consultation document)?

Answer:           No.

26. If you have answered yes or no to the previous question, please give your reason(s)

Answer:           We do not support the ideas regarding expanding the sponsor’s duties. The idea of an employer demonstrating a “practical commitment” sounds like one that would only amount to extra compliance-related paperwork and bureaucracy being placed on employers, with an onerous responsibility to “practically” demonstrate something that often goes without saying or is futile or irrelevant to the positions for which the employer needs to recruit sponsored migrant workers. It seems that the Government may want to ignore the fact that employers don’t endure the cost, hassle and delays of recruiting migrant workers just for the fun of it. We have given our views earlier about the genuine relevance of a private health insurance requirement for these skilled tiers.

27. Do you think that the Government should raise the English Language requirement for Tier 2?

Answer:           Yes

28. If you think that the Government should raise the English language requirement for Tier 2, to what level do you think it should be raised?

Answer:           Intermediate

29. If a supply of migrant workers is no longer readily available, what action will you take to train and source labour from the domestic market?

Answer:           Given the significant costs, hassle and responsibility already involved in recruiting migrant workers, it already makes much more sense for UK businesses to source and train staff from the domestic market wherever possible. UK Employers will surely continue to source suitable resident workers wherever possible, without the need for any heavy handed and harmful cap or limit on skilled migration.

Immigration limit and consultation: Our comment

The new coalition Government has recently announced its intention to introduce a limit on skilled migration and is currently carrying out a consultation on the issue. Before the official limit comes into effect in April 2011, the Government has announced a temporary limit, which will take effect from mid July.

We believe that this development will represent the most significant obstacle in the last decade and more to the ability of UK employers to recruit skilled migrant labour. The impact will vastly exceed that of the introduction of the Points Based System in 2008.

The full consultation document (less than 10 pages of main text) can be found here along with methods to respond, either online, or by completing the following template:

http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/consultations/limits-on-non-eu-migration/

We will share the content of our response to the consultation, so that anyone who shares our views can quickly and easily forward a fitting response to the UKBA/British Government.

UK Work Permits Ltd is opposed to the limit. We believe that this announcement is more of an effort to be seen to be doing something radical, than a truly workable idea to sensibly control immigration.

A simple headline including “immigration limit” may appear to many members of the public to indicate a real effort to control immigration and therefore reduce any negative consequences of uncontrolled immigration. However, we believe this initiative will do virtually nothing to reduce overall numbers, and it won’t touch on any of the real causes of concern among the British public.

Rather than controlling the categories of immigration that actually cause a strain on public resources, this move seems aimed at grabbing headlines and gaining favour with less informed members of the public.  The proposals do not address the issues of EU immigration (which the Government can do little to change, short of pulling out of the EU), the student visa path (as an apparently lower priority, this subject is due to be visited later in the year), or the controversial issue of uncontrolled “chain migration”.

Instead, these changes (the first of supposedly many) specifically target those people most likely to contribute to British society, and those least likely to be a drain on public resources. Perhaps more importantly, these changes will inevitably stifle the ability of employers in the UK to bring in much needed skills and expertise.

Non-EU nationals entering the UK for over 1 year for the purposes of work amounted to only 17% of non-British inflows in 2008 (this number is sure to have declined significantly already). “Study” amounted to nearly 28%. EU inflows accounted for 39% according to the International Passenger Survey. For tiers 1 and 2 to be at the top of the Government’s “hit list” makes no sense at all. They appear intent on “using a sledgehammer to crack a nut” that doesn’t even exist, while ignoring areas far more obviously deserving of attention.

The idea of a “first come, first served” system for Tier 2 of the Points Based System, inevitably means that in many cases, the timing of an application will influence the immediate ability of UK employers to address their human resource requirements, as much, or more than any objective eligibility criteria.

The Government, with the Migration Advisory Committee, has agreed and declared that they will adhere to the principles of

• Fairness
• Predictability
• Selectivity
• Operability

However, many of the suggestions made in the consultation document appear to be totally at odds with those principals.

For those without the time to read the consultation document, we have listed some of the main ideas raised below, along with our comments where relevant. We will be responding to the consultation document imminently (and we will share or publish our response), and we advise all of our clients to also make their views known. With regards to all of our licensed sponsor clients, we also would recommend that you contact your Consultant in the very near future, to make any request with regards to CoS quotas, as soon as possible.

A list of some of the ideas raised in the consultation document, and our comments, follow below.

Main Limit Mechanism

Tier 2 Limit Mechanism

Consultation content includes the following:

• Main choice is presented between the “first come first served” option or the “pool” system.
• In this case, the UKBA favours the “first come first served” option.
• The system suggested is one where a quota would be released / confirmed on a quarterly basis, which will supposedly provide businesses with “the greatest certainty”.
• Another option being touted (previously floated a few years ago under the Labour Government) is the idea of using “auctions”. Under this system, licensed sponsor’s would “bid” for a quota of Certificates of Sponsorship. Under this system, literally the Government would be selling the right to bring in migrant labour “to the highest bidder”.

UKWP Comment

We agree that from the two main options presented, the “first come first served” option seems the fairest: it will still allow for decisions to be made according to consistent and predictable qualifying criteria.

The pool option would indeed provide less certainty to employers. They might desperately need an individual, and try to rely on the system to allow them to recruit that person, but could find that during the allotted time period (e.g. 6 months or perhaps even more) he /she has failed to be selected from the pool because other applicants being sponsored by other employers happen to score more points overall (including, quite possibly, points awarded for factors that are of little importance compared to the employer’s urgent needs). The pool system would lead to a lot of uncertainty and inconsistency, both for sponsors and for individual applicants.

The auction system would mean the ability to recruit migrant labour was not based on a measure of an employer’s “need”, but based on the ability to pay the highest price. Inevitably small companies and those with restricted funding and cashflow would unduly suffer.

Against these two alternatives, the “first come first served” option seems to be fairer. However, we are still opposed to it and are opposed to the very idea of a rigid limit on immigration under Tier 2. Any limit on migration through Tier 2 will inevitably result in unnecessary and harmful restrictions and delays for British businesses, who will be forced to put their urgent staffing needs on hold: while they wait for the next CoS allocation to become available, while they wait to see if and when a candidate will be selected from a pool, or while they wait to discover that they have been unable to obtain their CoS quota through auction.

Tier 1 (General) Limit Mechanism

Consultation content includes the following:

• A choice between a “first come first served” option and a New Zealand style “pool” system.
• In the pool system, applications meeting general eligibility criteria will sit in a “pool”, and at regular intervals, a number of the highest scoring applications will be selected to be invited to apply for visas.
• After a set period (say 6 months) in the pool, applications are removed from it.
• The UKBA favours this New Zealand-style pool option.

There have been suggestions in the media that applications would be selected from the pool on a quarterly basis.

UKWP Comment:

We agree that based on the information presented, between the two options presented, the pool system appears to be the fairest to all applicants in terms of applications being decided based on merits, rather than on “timing”. However, the pool system is fundamentally still unfair as to a large degree it will equate to a “lottery” for individual applicants. The success or failure of an individual’s application will depend partly on a very “unknown quantity”: the strength of other people’s applications submitted at around the same time as their own. This is hardly the fair and predictable system promised when the Points Based System was introduced (or indeed being promised now by the coalition Government and MAC). Furthermore we argue that the idea of applications being selected from the pool only once every three months would create massive uncertainty and very significant delays for applicants. In the New Zealand system, applications are selected from the pool every two weeks.

Tier 2: Other Proposed Operational Changes

Tier 2 General

Consultation content includes the following:

• There should be a limit on Tier 2 (General) according to the mechanism described above.
• There should be moves to help employers to up-skill resident workers and reduce the need for them to recruit migrant workers.
• One suggestion to help manage /implement the new limit would be to combine the shortage occupations list with the resident labour market test – so that both requirements have to be met before a Certificate of Sponsorship can be issued under Tier 2 (General).
• The new Government supports of “the principal of sponsorship” under Tier 2 of the Points Based System.
• Sponsors duties affecting Tier 2 Sponsors could be extended.
• Sponsors could be required to demonstrate a “practical commitment” to up-skilling British workers.
• Sponsors could be forced to hold health insurance for their employees.
• The question of raising the English Language requirement for Tier 2 has also been mentioned.
• Ministers of Religion and Elite Sports people are to be excluded from the limits.

UKWP Comment

Our view is that combining the shortage occupation list and the resident labour market test is totally unnecessary and it definitely will harm business in the UK. This idea could only ever work if based on a consistently flawless shortage occupations list that would take into account every regional and local trend and situation at every moment in time. This is clearly unrealistic.

The very point behind needing to demonstrate a resident labour market test is supposed to be that employers show that they have tried in practice, and failed, to recruit a suitable resident worker. If an employer has advertised (in a suitable way, to hit the most relevant target audience), and has still been genuinely unable to recruit, this in itself surely demonstrates that there is a need. If the system cannot cover such a situation, then it will not meet the needs of businesses and this will be another step that will make the UK a less attractive place from which to trade.

The Government has stated its ongoing support for the principal of sponsorship for UK organisations employing migrant workers. We suggest that the Government/UKBA focuses on the long promised / threatened matter of enforcement. We believe that the current resident labour market test rules, in combination with the Sponsor’s Duties, actually work perfectly well at preventing unnecessary sponsorship of migrant workers, if only they are adhered to.  We suggest that the Government/UKBA focuses on checking and ensuring the current guidelines are followed. One simple step that could be taken would be to check that advertisements used by employers do indeed meet the basic published requirements.

Basic checks should be made when Certificates of Sponsorship are issued by employers, and clearly it should be noticed if the employer enters clear descriptions of inadequate advertising. We have become aware of situations where employers (not  those receiving advice from the matter on us) have literally informed the Government in this way (using the Sponsorship Management System) that they haven’t conducted a proper recruitment search, yet an individual then goes on to be sponsored under Tier 2. How easy would it be to put an automated system in place that would flag up any situation where the phrase “jobcentre” isn’t used in the relevant field (and for that matter other approved media depending on the code of practice that is selected)?

From our own experience / knowledge, an insufficient amount of compliance activity, so far, has taken place, to allow employers to really understand the importance of their responsibilities regarding the resident labour market search. Compliance activity seems so far to have been misdirected into other, far less important activities, but we suggest that this is what is needed, rather than an effective ban on all non-shortage sponsorship.

Combining the resident labour market test and the shortage occupations list would be incredibly damaging for British businesses, and unworkable. We suggest instead that the Government/UKBA focuses simply on making sure that the perfectly adequate rules regarding the resident labour market search are actually adhered to.

We do not support the ideas regarding expanding the sponsor’s duties. The idea of an employer demonstrating a “practical commitment” sounds like one that would only amount to extra compliance-related paperwork and bureaucracy being placed on employers, with an onerous responsibility to “practically” demonstrate something that often goes without saying or is futile or irrelevant to the positions for which the employer needs to recruit sponsored migrant workers. It seems that the Government may want to ignore the fact that employers don’t endure the cost, hassle and delays of recruiting migrant workers just for the fun of it. The second point regarding health insurance, even more than the first, appears to be more the result of PR / communications advice, than a genuine interest in making the system work more effectively.

We do see an argument (based only on our own anecdotal evidence / experience) for reviewing the minimum English Language requirement (or some of the accepted/approved tests) from its current level in relation to Tier 2 (General).

Dependants

Consultation content includes the following:

• The idea has been mentioned that dependants should, in some way, be recognised in relation to the proposed limit.

UKWP Comment

We believe that this is a difficult question and should be considered separately and aside from the wider question of introducing a limit. While we disagree with the limit in general, if dependants are to count towards the limit, then the situation will be potentially made even more unfair. To use a simplistic but logical example, it could lead to a situation where one business is penalised (left unable sponsor somebody they need) because a migrant worker who is going to work for another business has a large family. We expect that with the data that is available on Tier 1 and 2 workers, it must be possible to work out the average number of dependents for each main applicant. This “average” number of dependents can then be factored into the calculations leading to any final limit figure, assuming that the limit is going to be implemented despite stakeholder opposition.

There seems to be little point in the Border Agency having asked as part of the consultation whether stakeholders agree that dependents should be included or recognised within the quota. The UKBA have already instructed the Migration Advisory Committee to recommended figure for a limit to include dependents (see the MAC Consultation doc, 1.5 & 1.6). This clearly and seriously discredits the consultation process. The parameters of the discussion have already been set so tightly as to make the process appear almost meaningless, and with the government asking direct questions they have clearly already decided the answer to, the supposed consultation begins to look like nothing more than an empty public relations exercise.

Intra Company Transfers

Consultation content includes the following:

• ICTs account for 45% of Tier 2 entry clearance visa applications.
• The government recognises the importance of the ICT route to businesses, and the free trade treaties that force the UK to keep this route open,
• The Government claims however that there is a significant risk of longer term transferees drawing on public funds (even though this is prohibited).
• Perhaps the ICT route could be included within the limit but anyone coming to the UK under the ICT route for less than 12 months could be excepted.

UKWP Comment

Firstly, we believe that the idea that Intra Company Transferees are likely to claim public funds is highly questionable. Most intra-company transferees are highly paid and responsible professionals, and would not do anything to contravene the rules covering their stay in the UK. We do not support ICTs being affected by the limit, especially while this is the only clear argument to include them. In the system as proposed, we hope at least that there would be the option of extending the stay of Transferees who were initially brought in for less than 12 months. In the case of urgent ICTs, we envisage employers bringing people in initially for less than 12 months (to avoid refusals or delays due to the limit) and then being forced to process repeated subsequent extensions, adding cost and bureaucracy for their business. As with the issue of dependents, it looks very much as though this may not be a question for real consultation. The MAC has been instructed already to “work on the basis that” ICT’s are to be included in the limit. It looks very much like a foregone conclusion that they will.

Tier 1: Other Proposed Operational Changes

Tier 1 (General)

Consultation content includes the following:

• Raising the minimum criteria for qualification under Tier 1 (General), and indeed, the interim measures will see them raising the total points “pass mark” by 5 points to 100 (from 19^th July).
• Also the idea of introducing the following factors into the Tier 1 (General) Assessment:

• Higher Level English Language Ability
• Skilled Dependents
• UK Experience
• Shortage Skills
• Health Insurance

UKWP Comment

We believe that the current qualifying threshold is roughly correct in terms of allowing people to enter who are likely to enter highly skilled work and contribute to the economy, based on our own anecdotal experience.  If we had to comment on this further we would have to say that there is perhaps too much emphasis placed on previous earnings rather than provable skills and relevant experience. A good number of individuals with skills that are badly needed in the UK do not qualify currently purely because their previous earnings aren’t high enough. Our response regarding the other points is below.

Higher Level English Language Ability

We support the inclusion of a stringent and demanding English Language requirement for Tier 1 (general), as we believe that adequate English Language skills are important for professional success in the UK and integration into British society. We believe that this should be closely monitored and that potentially alterations may need to be made to this area.

Skilled Dependents

We believe that in some cases, where a dependant has provable skills, perhaps in a shortage area, there may be merit in awarding points in recognition of this, with the valid aim of  encouraging and facilitating the arrival of people with skills that the country genuinely needs.

UK Experience

Points are already awarded under this area. There are valid reasons to continue: rewarding people who have already paid UK University fees to study here or who have contributed to the economy through tax on their UK earnings, and also in recognising the degree to which these people will have already integrated into British society. We think however that the importance / relevance of this factor will vary according to the stringency of the English Language requirements.

Shortage Skills

In our view it makes sense to recognise shortage skills under the Tier 1 (general) route, and take advantage of this category to more effectively relieve skills shortages.

Health Insurance

We believe that the idea of factoring in private health insurance is completely unnecessary and unfair in the context of all of the existing and proposed measures of an applicant’s suitability to enter the UK under this category. Private health insurance is extremely expensive. We are also sure that in anything like its current form, Tier 1 (General) will not be a route used for “health tourism”.

Investors and Entrepreneurs

Consultation content includes the following:

• These subcategories of Tier 1 of the PBS will probably be excluded from the limit (also the Post Study Work category is due to be reviewed separately at a later date).
• The UK should do more to encourage eligible individuals overseas to migrate to the UK under these categories.
• Ideas for this include:
• changing (lowering) the current required investment amount for the Entrepreneur sub-category,
• considering staged funding situations,
• setting different thresholds for individual sectors,
• extending access to more than one entrepreneur where this is relevant

UKWP Comment

As UKWP generally opposes the limit in tiers 1 and 2, we support any and all sub-categories being exempted from it. In terms of revising the requirements for the Entrepreneurs sub-category, we do think that there is merit in this. It may make sense for applications based on proposed businesses in growth areas to be treated more favourably than those where the market in the UK is saturated. Staged funding should be considered very carefully and these provisions could be subject to abuse.